Doctors for Life International v Speaker of the National Assembly and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Mosenke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabine J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 17 August 2006
• Citation: 2006 (6) SA 416 (CC)
• Docket Number: CCT 12/2005
• Counsel: K J Kemp SC for the applicant. N M Arendse SC (with him T Masuku) for the respondents.
• Court: Constitutional Court

Doctors for Life International v Speaker of the National Assembly and Others
2006 (6) SA 416 (CC)

2006 (6) SA p416

Citation	2006 (6) SA 416 (CC)
Case No	CCT 12/2005
Court	Constitutional Court
Judge	Langa CJ, Mosenke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabine J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	August 23, 2005; February 21, 2006
Judgment	August 17, 2006
Counsel	K J Kemp SC for the applicant.; N M Arendse SC (with him T Masuku) for the respondents.

Flynote : Sleutelwoorde B

Constitutional practice — Courts — Constitutional Court — Jurisdiction — Exclusive jurisdiction of CC under s 167(4) of Constitution — Principle C underlying such exclusive jurisdiction is that disputes involving important questions relating to sensitive areas of separation of powers to be decided by CC only — Where dispute will require court to decide crucial political question and thus intrude into domain of Parliament, dispute more likely to be one for exclusive jurisdiction of CC — Where constitutional obligation imposed on D Parliament requires Parliament to determine first what is necessary to fulfil the obligation, review by court as to whether obligation fulfilled infringing on autonomy of Parliament to regulate its affairs and thus on separation of powers — Obligation imposed by s 72(1)(a) of Constitution on Parliament to facilitate public involvement in its legislative and other processes precisely such obligation — Matter accordingly one for exclusive jurisdiction of CC. E

Constitutional law — Separation of powers — Principle requiring other branches of government to refrain from interfering in parliamentary proceedings — Structure of provisions of Constitution entrusting and separating powers between legislative, executive and judicial branches of government reflecting concept of separation of powers — Court to be conscious of vital limits on judicial F authority and Constitution's design to leave certain matters to other branches of government and to observe constitutional limits of authority — Court may only interfere in processes of other branches of government if mandated to do so by Constitution — Parliament also required to act in accordance with, and within, limits of Constitution in exercising its G legislative authority — Constitutional Court (CC) ultimate guardian of Constitution and its values — Constitution, in s 167(4)(e), entrusting CC with power to ensure Parliament fulfils its constitutional obligations — Therefore clear language of Constitution required to deprive CC of its jurisdiction to enforce Constitution.

Constitutional practice — Courts — Constitutional Court — Powers of — Declaratory relief as to H validity or otherwise of Bill — Bill passed by Parliament but not yet signed by President — Constitution, s 167(4)(b) — Provisions of s 167(4)(b) and s 167(4)(e) reconcilable on basis that s 167(4)(b) limiting scope of s 167(4)(e) when purpose and effect of constitutional challenge under s 167(4)(e) to render a Bill invalid — Not competent for Constitutional Court to grant relief in respect of Bill after Parliament passed Bill but President I not assenting to it, save at instance of President and in limited circumstances contemplated in s 79 of Constitution — Challenge to constitutionality of Sterilisation Amendment Act 3 of 2005 failing where challenge launched before President assenting to Bill. J

2006 (6) SA p417

Constitutional practice — Courts — Constitutional Court — Powers of — Declaratory relief as to A validity of Bill — Bill signed by President but not yet in operation — Section 80 of Constitution not precluding members of public from challenging provision of Act nor Court from considering validity of an Act at instance of public, even if not yet in operation — Court may thus grant relief in respect of such a Bill — Court accordingly having jurisdiction to B consider constitutional challenge to Dental Technicians Amendment Act 24 of 2004, Choice on Termination of Pregnancy Amendment Act 38 of 2004 and Traditional Health Practitioners Act 35 of 2004.

Constitutional law — Legislation — Enactment of — Duty of Parliament and provincial legislatures to facilitate public involvement in legislative processes — Constitution, ss 72(1)(a), 118(1)(a) — Duty clearly imposed on National Council of Provinces (NCOP) and provincial legislatures to facilitate C such public involvement — Duty requiring the taking of steps to ensure that public participating in legislative process — Parliament and provincial legislatures having considerable discretion in determining how best to achieve balanced D relationship between representative and participatory democracy — Therefore requiring significant measure of discretion in determining how best to fulfil duty of facilitating public involvement — Courts could, and would, in appropriate circumstances determine whether degree of public E involvement required by Constitution met — Reasonableness required by NCOP and provincial legislatures in carrying out duty to facilitate public involvement — Such involving (i) duty to provide meaningful opportunities for public participation in law-making process and (ii) duty to take measures to ensure people able to take advantage of opportunities provided — Question always F whether what Parliament and provincial legislatures have done was reasonable in all the circumstances — Court to balance, on one hand, need to respect parliamentary institutional autonomy and, on other, right of public to participate in public affairs.

Constitutional law — Legislation — Validity G of — Parliament and provincial legislatures failing to comply with duty to facilitate public involvement in enactment of statutes — Constitution, ss 72(1)(a), 118(1)(a) — Failure to comply with manner and form requirements rendering legislation invalid — Constitutional Court not only having right but also duty to ensure that law-making process prescribed by Constitution H observed — If not complied with, Court having duty to say so and declare statute invalid.

Constitutional law — Legislation — Validity of — Choice on Termination of Pregnancy Amendment Act 38 of 2004 and Traditional Health Practitioners Act 35 of 2004 — National Council of Provinces and provincial I legislatures failing to fulfil duty in terms of ss 72(1)(a) and 118(1)(a) of Constitution to facilitate public involvement in enactment of the two statutes — Acts declared invalid but declaration of invalidity suspended for 18 months to enable Parliament to re-enact them in manner consistent with Constitution. J

2006 (6) SA p418

Constitutional practice — Parties — Locus standi — Application for order declaring that A Parliament and provincial legislatures having failed to comply with constitutional duty to facilitate public involvement in enactment of two statutes — Constitutional Court will consider such application only in circumstances where applicant has sought and been denied opportunity to be heard on Bills and where application for relief launched as soon as practicable after Acts B promulgated — Only those applicants making diligent and proper attempts to be heard by legislative body should be entitled to rely on failure to facilitate public involvement in legislative process Constitution ss 72(1)(a) and 118(1)(a).

Headnote : Kopnota

The principle underlying the exclusive jurisdiction of the Constitutional Court (the CC) under s 167(4) of the Constitution of C the Republic of South Africa, 1996, is that disputes that involve important questions that relate to the sensitive areas of separation of powers must be decided by the CC only. Therefore, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within s 167(4). It follows that where a dispute will require a court to decide a crucial D political question and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of the CC. Therefore, a distinction should be drawn between constitutional provisions that impose obligations that are readily ascertainable and are unlikely to give rise to disputes, on the one hand, and those provisions which impose the primary obligation on Parliament to determine what is required of it, on the other. In the case of the E former, a determination whether those obligations have been fulfilled does not call upon a court to pronounce upon a sensitive aspect of the separation of powers. An example of such a provision is one that requires statutes to be passed by a specified majority. The criteria set out are clear, and a failure to comply with them would lead to invalidity. When a court decides whether these obligations have been F complied with, it does not infringe upon the principle of the separation of powers. It simply decides the formal question whether there was, for example, the two-thirds majority required to pass the legislation. By contrast, where the obligation requires Parliament to determine in the first place what is necessary to fulfil its obligation, a review by a court whether that obligation has been fulfilled trenches on the autonomy of Parliament to regulate its own G affairs and thus the principle of separation of powers. This is precisely what the obligation comprehended in s 72(1)(a) does. While it imposes a primary obligation on Parliament to facilitate public involvement in its legislative and other processes, including those of its committees, it does not tell Parliament how to facilitate public involvement but leaves it to Parliament to determine what is required of it in this regard. A review by a court of whether H Parliament has complied with its obligation under s 72(1)(a) calls upon a court to intrude into the domain of a principal legislative...